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2010 DIGILAW 237 (JK)

Bashir Ahmad Wani v. State

2010-04-30

MOHAMMAD YAQOOB MIR

body2010
1. Petitioner in connection with case FIR No.222/2001 for the commission of offence punishable under Sections 3/4/5 of POTA, Section Explosive Substance Act read with Section 120-B RPC, while in custody had been detained under the provisions of Public Safety Act but later on vide Government order No.Home-270(PBV) of 2004 dated 30.1.2004, the order of detention has been revoked by the Government in exercise of the powers conferred under sub-section (1) of Section 19 of the J&K Public Safety Act. It is only thereafter the instant petition has been field on 24.2.2005. 2. The first contention of the learned counsel is that the order of discharge is the outcome of non-application of mind as the rule providing for discharge is not applicable to the petitioner as the petitioner has been appointed as Constable in the year 1992 when the alleged occurrence pertains to the year 2001, means he had more than eight years of service on the relevant date. It is only in case of a probationer order of discharge can be passed. 3. The contention raised has substance. The Rule 335 of Police Rules has been wrongly quoted. Same does not provide for discharge, however, it provides for dismissal from service. 4. It is an admitted case that the petitioner has not been afforded an opportunity of showing cause. 5. Confronted with that position, learned counsel for the respondents would contend that in fact it is an order of dismissal passed against the petitioner. In the interests of security of the State dismissal of the petitioner had become imperative, therefore, requirement of providing opportunity of being heard was dispensed with but at the same time admitted that the record as has been made available to him no where indicates that any satisfaction had been arrived at by the competent authority for dispensing with the enquiry against the petitioner. 6. The order of discharge or even if termed to be an order of dismissal passed by the respondent No. 3, is unsustainable because the conjoint and harmonious reading of Section 126 of the Constitution of Jammu & Kashmir, Rule 359 of Police Rules and sub-rule 2 of Rule 33 of the CCA Rules clearly envisage as to what is the procedure to be followed while proposing a penalty of dismissal, reduction or removal of a person employed in civil capacity under the State. The requirement of dispensing with the strict adherence to the provisions of sub-section 2 of Section 126 of the Constitution of J&K State and provisions of Rule 359 of the Police Rules is controlled by the proviso to sub-section 2 of Section 126 and also by the sub-rule 11 (1)(2) of Rule 359 of the Police rules. Proviso to sub-section 2 of Section 126 of the J&K State Constitution is reproduced here-under:- "Provided that this sub-section shall not (a) Where a person is dismissed or removed or reduced in rank, on the ground of conduct which has led to his conviction on a criminal charge; (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the Governor is satisfied that in the interests of the security of the State, it is not expedient to hold such inquiry. 7. The proviso provides for three situations where-under requirement of sub-section 2 i.e. (a) reasonable opportunity of hearing to the person against whom penalty is proposed, can be dispensed with when such person has been convicted on a criminal charge, which is not applicable to the present case as the petitioner has not been convicted, (b) where the authority concerned records in writing that it is reasonably impracticable to hold such enquiry. Same is also not applicable to the instant case as admittedly no such satisfaction has been recorded. Same position could not be controverted by the learned counsel for the respondents as the record produced no where indicate that any such satisfaction has been recorded so as to covet the case under clause (b) of the proviso. The third situation is that in the interests of security of the State if the Governor is satisfied that it is not expedient to hold the enquiry, it can be dispensed with but this position is not also applicable to the instant case as the case of the petitioner though had been ordered to be processed for dismissal by the DIG as well as IG but instead of processing the case for dismissal, what has been done, in sheer haste order of discharge has been passed. So non-adherence to the requirements of conducting enquiry and for giving petitioner reasonable opportunity of being heard, has seriously prejudiced the rights of the petitioner which renders the order of discharge, now styled by other-side as order of dismissal, to be unsustainable. 8. Rule 359(11)(1)(2) of the Police Rules also provides what is provided by the proviso to sub-section 2 of Section 126 of the Constitution of the J&K, therefore, to contend that in the interests of security of State under sub-rule 2 of Rule 33 holding of enquiry was dispensed with, is not tenable at all because when enquiry is to be dispensed with and person against whom penalty is proposed is not to be heard, then it is only the Governor in terms of clause (e) of the proviso lo subsection 2 of Section 126 of the Constitution read with clause (e) of proviso to sub-rule 2 of Rule 11 of rule 359 of the Police Rules who can dispense with the requirement if he is satisfied that in the interests of security of the State it is not expedient to give to the officer concerned such an opportunity. 9. Admittedly without enquiry and without any opportunity of being heard to the petitioner, the impugned order has been passed. Furthermore the three situations as provided by the proviso referred to above too are not applicable as the respondent No.3 who has passed the order impugned has not anywhere recorded any satisfaction about the dispensation of requirement of holding the enquiry. The impugned order of discharge, contended as dismissal, not only suffers from non-application of mind but also has been passed in violation of the mandatory provisions of law as referred to hereinabove, resultantly valuable right of the petitioner has been infringed. The order impugned, as such, is quashed. 10. It shall be open for the respondents, if they so choose, to initiate enquiry or to proceed against the petitioner in accordance with applicable rules. The period during which petitioner has remained out of service disentitles the petitioner from claiming or getting any wages for the said period but such period shall count for pensionary benefits. Petition accordingly succeeds so is disposed of on afore-stated terms. The record as has been produced be returned hack to learned counsel, Mr. Magray.